Ten Reasons Why

That is an interesting way of putting it. But what if your friend took your idea, posted it on the internet, and claimed that it was his idea. It was such a good idea, someone paid him a million dollars so that they could bring it to life. Then it is still your idea, but your friend makes the money - wouldn't that suck?

Now let's assume your friend is Sony and they go out and make a few BILLIONS off your idea. You try to sue them, win in every instance, but they just keep moving their production from country to country, with you in hot pursuit. You sue them for "copyright infringement", maybe even "patent infringement" in the USA, Germany, Japan, the Netherlands, Belgium, the United Kingdom, Russia, Italia, France... you get the idea. Suddenly you're so bankrupt, you can't afford bread. Sony still makes BILLIONS, you don't.

Now try it the other way round. You have a GREAT software idea, but IBM has a patent on a "list field connecting text with business objects", which is pretty much any software since the invention of a user interface. If your great idea should become a threat to IBM's software, they sue you in just one country. Suddely you're so bankrupt, you can't afford bread. IBM still makes BILLIONS, you don't.

This system is so flawed, there is no way of turning it into something useful for anyone besides rather big corporations. By the way, both examples are absolutely real, but nobody remembers the inventor of the Sony Walkman, who today still holds a US Patent on a portable tape player.

My previous comment, of course, has nothing to do with file sharing, which is what the metafilter discussion was about.

io3elt:

Nowhere in the post do I or Matt Haughey argue for doing away with the concept of intellectual property or intellectual property rights. Intellectual property law (e.g. copyright, patents, trademarks, trade secrets, etc.) exist explicitly to address the situtation you describe.

The problem with the current batch of legislation is that corporate lobbies have managed to convince legislators and judiciary that intellectual property = physical property, that copyright infrigement is "stealing." Worse, the same lobbies are now advertising to the general public to try spread that bit of misinformation.

In general, the existence of intellectual property law is a good thing, as it provides incentive to create ideas, creative works, etc. However, intellectual property law is supposed to create a "limited monopoly" over the intellectual property. Why limited? To assure the public benefits from a robust public domain.

That's why it's important to poke holes in the "copyright infringment = stealing" fear, uncertainty, and doubt wherever and whenever possible. It's impossible to protect the public domain when you treat intellectual property as the equivalent of physical property.

After reading the debates at MeFi, I feel inclined to give some feedback from my take on the current problems facing the rights of intellectual property. Since it's practically impossible to get a membership at MeFi, I hope that a few people will hazard a glance this direction.

First, a bit of background and a disclaimer. I've consulted with several companies on copyright law, Curious Labs/Egisys to name one. While I'm not an attorney I've spent thousands of hours researching this one aspect of the law, and so I consider myself on good footing... at least good enough to have written several nationally published columns on the subject.

As for the disclaimer, this is bound to be a long post, but I hope it will add some insight into the discussions, and possibly provide a context from which others may work in future debates. My personal views on the subject are bound to creep into this post, but I hope they won't interfere with an objective assessment of the information I provide. If I have time, I'll revisit this forum at a later time and provide links to my information, but I can't make any promises as I have a busy day scheduled. (I'm currently enjoying my morning coffee)

When a person looks at the crafting of current copyright law, its limitations, its excesses, and its public perception, many things must be taken into consideration... namely: process, application, inference, revision, and precedent (though not necessarily in that order).

The original intent of allowing for copyright was "...to provoke the advancement of the useful Arts and Sciences..."

Basically, the folks who ran the country in the early 1800's wanted a writer to be able to make a living wage off of writing. Before 1900 the laws were expanded to include the publication of sheet music, and everything worked well for the most part. Shortly after the 20th century began, however people figured out how to record, replay, and broadcast music, and the guy who wrote the original music got left out in the cold. Thus the laws got another kick forward and content owners got some added rights and protections.

The process of revision had been established by the 1950's, and it went like this:

When the law needs revised, content owners, and lobbyists (The National Library Association is a big one) approach congress to present the reasons for revision. Congress holds committee and calls in the lawyers to work out a fair deal. That gets sent back to the content owners who respond... this goes back and forth until a compromise is made that both congress and the interested parties find reasonable.

The process worked because; a. Congress understood that it was their duty to act in the best interests of the public, and; b. the judiciary branch could be trusted to strike any law that infringed on the constitutional rights of the populace in general.

So, what went wrong?

By 1978, copyright law had become a quagmire of legislation to such an extent that no elected official, well meaning or not, could begin to decipher it. It was a series of special case exceptions (libraries always put in their two cents), outdated references (if you have a music-wheel phonograph at home you need to secure special permissions from the publisher of any sheet music you wish to use when preparing your player piano for public listening), and some things that just didn't make sense at all (allowances for budgeting of damn maintenance in Willem County, North Dakota).

To make a long story short, every time they tried to revise the system it just got more arcane. By the early nineties, the public was misinformed, the legislative branch had long ignored a series of laws that had grown to over 45,000 pages of legislation, the judiciary didn't have much reliable precedent, and, to turn a phrase, the whole thing was screwed harder than a cheerleader on prom night.

When the internet became a huge focus, fireworks started to fly. The federal government wanted to get companies actively involved in the new medium, which was critical to the US maintaining a technological lead. The corporations turned around and stated that in order to expand into cyberspace, they need assurance that their works would be protected.

Personal note: In fact, the companies were full of it. At the time, the net was growing so fast that anyone that wasn't on board was losing millions, and content was amassing in terabytes despite a complete lack of protection. The government's "experts" were uninformed and short-sighted.

Suddenly, the people who were supposed to be arbitrating for the public were outsourcing the job to consultants who were more concerned with getting Disney and Fox into cyberspace than in protecting the rights of the consumer.

One look at the Green Paper or the White Paper (precursors of the DMCA) make it apparent that content owners were about to acquire unparalelled rights and powers.

While all this was going on, a landmark court case happened. Someone had happened onto some internal records from the Church of Scientology and posted them on his AOL member's page. The documents proclaimed the Church's belief that they were long-dead resurrected space aliens who had fled from a galactic overlord. Why they would object to the publication of these records, the world may never know, but, they did, and they sued.

They sued AOL.

They sued, and they won... a lot.

In fact, the courts determined that one count of infringement had occurred for every time the digital document had been copied. Tough to prove, eh? Not really. Just assume it's in the bilions... that's right, billions. This is because every time the file had been moved from physical storage to RAM, into and out of RAM, displayed on screen, deconstructed for tranmsit, recompiled, retransmitted, boosted in transit... in short, one act of infringement for every time that file had been copied to any part of a computer or communications line...

The Church of Scientology got its secret documents pulled, ruined the original infringer, and set the tone for a very nasty piece of new legislation, all in one big judicial blitzkrieg.

That is the foundation for the DMCA. The DMCA redefines intellectual property, gets rid of Fair Use (Which hasn't existed on the net since 2000), allows content owners to protect digital piracy through any means necessary (not even short of crashing your PC/destroying other legally obtained data)...

The biggest defenders of the DMCA are the RIAA... These people sued Fafhenhoffer Labs (creator of .mp3 format) and Intel (The makers of the first .mp3 player) on the grounds that those innovations' primary use was for the piracy of protected content.

The RIAA spent hundreds of millions of dollars in court fighting progress, and won more often than not. (Anyone been to Napster lately?)

Most analysts agree that had the RIAA invested their legal costs into developing a protected format that they could charge for, they wouldn't face their current predicament.

The analysts for the MPAA certainly believed that, which is one reason why we have DVD Players sitting in our living rooms instead of DivX boxes.

When the RIAA recently announced their intention to crack down on file-sharing (They do it every year... probably just to spook the newbies who tend to be easily frightened), the MPAA announced that they will not be expending capital to assist them (the RIAA) because it's a waste of time and resources.

One might argue that in five years the growth in consumer bandwidth will force the MPAA to show more concern, but I personally doubt it. In five years, the MPAA will have been spending hundreds of millions developing secure formats, pay-per-view streaming video sites, etc.

Side Note: This move on the MPAA's part is half analysis and half real world experience... they spent millions trying to fight the manufacturing of DVD burners and lost. It was extremely similar to the fight against the CD burner and the portable mp3 player, and the MPAA couldn't possibly overlook the parallels to the RIAA's current predicament.

The big losers will be, in fact, Blockbuster and Hollywood Video, who will be unable to compete with companies that let you rent movies at home, or buy them for a fraction of the current DVD selling price by providing your own burnable media.

Another thing to consider about the current situation is that policy in the US changes slowly. Every administration has its own issues, but substantial changes occur over long periods of time, with the political pendulum swinging wildly from end to end until coming to rest nearer the center.

Currently, file-sharing isn't considered morally or ethically wrong by most people because the laws are so extremely tilted in favor of the content owners/providers that nearly everything seems actionable... but as the pendulum swings toward public opinion, special interests like Disney and the RIAA will be forced to give up rights in favor of profits.

The MPAA is taking a series of positive steps in preparing for the future. The RIAA is fighting progress tooth and nail.

Either way, the DMCA will be coming back for revisions soon, and only time will tell whether file-sharers are acting more or less feloniously tomorrow. ;)

Good god, Paul. Get your own weblog already!

Sorry... I get all aflutter when people offer me the opportunity to provide context. =D

Hello
A late inquirey...

Would it be considered stealing for a theater janitor to let people into a film without paying the ticket price, when (s)he does not have the authority to do so?

Just curious.

Is it stealing if the theatre janitor watches a movie when he's taking a break?